Orcutt v. MacDonald CA2/6

Filed 3/16/23 Orcutt v. MacDonald CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
RICHARD ORCUTT, 2d Civil No. B319016
(Super. Ct. Nos. 20CV-0656,
Plaintiff and Appellant, 20CV-0658, 20CV-0662, 21CV-
0030, 21CV-0052)
v. (San Luis Obispo County)
JOHN A. MACDONALD,
Defendant and Respondent.
Richard Orcutt appeals from the judgment after the trial
court granted John A. MacDonald’s motion to strike the
complaint pursuant to the anti-SLAPP (strategic lawsuit against
public participation) statute (Code Civ. Proc., § 425.16).1 Orcutt
contends the trial court erred in granting the anti-SLAPP motion
because he established a probability of prevailing on his
malicious prosecution claim. We affirm.
1
Undesignated statutory references are to the Code of Civil
Procedure.
FACTUAL AND PROCEDURAL HISTORY
On May 30, 2019, G.C. reported to San Luis Obispo Police
Officer Jake Pelletier that she received an anonymous card in the
mail regarding property she managed on Cavalier Lane. The
card said to not rent the property “to Chinese or Mexican [sic].
They have ruined our neighborhood. You or your renters will be
shot if you do.” The note complained about tenants at other
addresses on Cavalier, including a claim that “Mexicans have
turned [one residence] into a used car lot.”
Also on May 30, Officer Pelletier received a complaint from
C.S. about a similar anonymous card he received regarding a
property he managed on Cavalier. It said to not rent to “Chinese
Filipino or Mexicans,” and contained the same threat that the
manager or renters would be shot. It mentioned several
addresses on Cavalier and claimed one tenant was “a convicted
felon.” Both cards listed the return address as only “Cavalier
neighbors.”
“Nearly immediately” after reading the card received by
G.C., Officer Pelletier recalled emails he recently received signed
“Richard V. Orcutt,” who lived on Cavalier. The emails
referenced some of the same addresses on Cavalier contained in
the anonymous notes to G.C. and C.S. The emails complained
that a Hispanic male was living in an SUV parked outside two
residences on Cavalier. One email stated, “my bet is he’s a
Felon.” Pelletier discussed the emails with Orcutt in April 2019.
Detective Evan Stradley was assigned to investigate the
anonymous cards. Orcutt was the only suspect. Stradley
interviewed several neighbors who described negative comments
Orcutt made about racial and ethnic minorities.
On June 28, after conducting “a significant amount of
investigation and multiple interviews,” Stradley contacted
2
MacDonald. MacDonald was a captain at the fire department.
Orcutt had been a firefighter at the department, and they worked
together from about 2000 to 2011. They sometimes worked
different shifts or at different stations.
Stradley showed MacDonald the threatening cards.
MacDonald told Stradley that based on the way Orcutt wrote the
letters Y and U, and the “writing style and verbiage,” he
“believed with confidence that [Orcutt] had written” the cards.
Later on June 28, a judge signed a search warrant for
Orcutt’s home. An arrest warrant was issued the next day. The
ensuing search found no incriminating evidence.
On June 29, MacDonald phoned Sergeant Chad Pfarr
because they had both worked for the city for nearly 20 years.
MacDonald said he “believed he knew who authored the
threatening letter” to C.S. because Orcutt “had a unique ‘U’ and
‘Y’ which he believed were similar to the ‘U’s’ and ‘Y’s’ made by
the author of the threatening letter.” But based on his fear of
Orcutt, MacDonald said he did not want to testify or be identified
in any reports.
Stradley then spoke to MacDonald on the phone.
MacDonald estimated seeing Orcutt’s handwriting approximately
30 times. MacDonald said he did not have “[p]roof,” but he
believed Orcutt wrote the threatening notes “based on how the
letter, ‘Y,’ was written, the contents of the letter and due to
knowing that [Orcutt] lives on Cavalier.” He said he was afraid
of Orcutt based on an incident at the fire station in which Orcutt
had “[f]reaked out.” MacDonald said he was afraid to be exposed
as a witness in the case, and “wanted to make sure that this
investigation was not solely based on his statements.”
MacDonald told detectives he did not want to testify in court or
have anything further to do with the case.
3
Several weeks later, Pfarr contacted MacDonald at the fire
station. MacDonald said “he wished he had never provided
information about the case” and would not cooperate further. He
requested that police review Orcutt’s personnel file to find other
witnesses regarding his writing style or to identify him as the
author of the notes.
The district attorney charged Orcutt with making criminal
threats. MacDonald did not wish to be a witness but testified
reluctantly at the preliminary examination pursuant to a
subpoena. He testified that while on a trip to New York City, he
received a call from a police officer. The officer told MacDonald
he would be a confidential witness, and, without saying the call
was being recorded, asked MacDonald questions about the case.
MacDonald believed it “was a discussion between friends,
between an officer who I know personally and grew up in the fire
and police service together. I had no idea that I’d be sitting here
today.”
On cross-examination, defense counsel asked MacDonald,
“You don’t like Mr. Orcutt, do you?” MacDonald responded, “I’m
not fond of him as a person.” Stradley testified that MacDonald’s
identification was “the only direction connection” between Orcutt
and the cards.
At the conclusion of the preliminary hearing, the
prosecutor stated that an FBI expert compared the cards with
writing found in Orcutt’s home and conducted DNA and
fingerprint analyses, and Google searched Orcutt’s computer and
cell phone. None of these techniques yielded any evidence to
corroborate Orcutt as the author of the notes. Of the three FBI
handwriting comparisons, two were “inconclusive” and the third
“may not have” been Orcutt. The magistrate granted the
prosecution’s motion to dismiss the criminal case. The
4
magistrate stated that while there was probable cause to search
Orcutt’s home, it was “undercut” by the subsequent investigation.
Orcutt sued MacDonald for malicious prosecution. He also
alleged, but later abandoned, causes of action for intentional
infliction of emotional distress and defamation.
MacDonald filed a motion to strike the complaint pursuant
to section 425.16. Stradley’s declaration in support of the motion
stated, “At no time did Captain MacDonald advocate for the
arrest or prosecution of [Orcutt], and he indicated that he
preferred not to be involved at all.”
The trial court granted the anti-SLAPP motion and entered
judgment striking the complaint. Orcutt appeals that ruling.
(§ 904.1, subd. (a)(13).)
DISCUSSION
Anti-SLAPP motion
The anti-SLAPP statute serves “the public interest to
encourage continued participation in matters of public
significance.” (§ 425.16, subd. (a).) “A cause of action against a
person arising from any act of that person in furtherance of the
person’s right of petition or free speech . . . in connection with a
public issue shall be subject to a special motion to strike, unless
the court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).) The court “engage[s] in a two-step
process: ‘First, the court decides whether the defendant has made
a threshold showing that the challenged cause of action is one
arising from protected activity. . . . If the court finds such a
showing has been made, it then determines whether the plaintiff
has demonstrated a probability of prevailing on the claim.’ ”
(Taus v. Loftus (2007) 40 Cal.4th 683, 712.)
Orcutt concedes that MacDonald’s statements to law
5
enforcement constituted protected activity. But Orcutt contends
he satisfied the second prong by establishing a probability of
prevailing on his malicious prosecution claim. We review that
issue de novo. (Greka Integrated, Inc. v. Lowrey (2005) 133
Cal.App.4th 1572, 1577.)
“ ‘In order to establish a probability of prevailing on the
claim . . . the plaintiff “must demonstrate that the complaint is
both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.” [Citations.]’ ” (Taus v.
Loftus, supra, 40 Cal.4th at pp. 713-714.) The plaintiff is
“required to produce admissible evidence from which a trier of
fact could find in his favor, as to every element” of malicious
prosecution. (Lee v. Kim (2019) 41 Cal.App.5th 705, 721.)
Although “ ‘the court does not weigh the credibility or
comparative probative strength of competing evidence, it should
grant the motion if, as a matter of law, the defendant’s evidence
supporting the motion defeats the plaintiff’s attempt to establish
evidentiary support for the claim. [Citation.]’ ” (Taus, at p. 714.)
Only “claims with the requisite minimal merit may
proceed.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 94.) “This
burden is somewhat akin to that required to resist a nonsuit
[citation], or to move for summary judgment.” (1-800 Contacts,
Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 584.) But unlike
summary judgment, “[t]he defendant’s only burden is to establish
that claims against it fall within the ambit of the statute, and the
defendant does not have the overall burden of showing the
plaintiff cannot prevail on the claims.” (Peregrine Funding, Inc.
v. Sheppard Mullin Richter & Hampton LLP (2005) 133
Cal.App.4th 658, 675, fn. 10.)
6
Malicious prosecution
“Malicious prosecution ‘consists of initiating or procuring
the arrest and prosecution of another under lawful process, but
from malicious motives and without probable cause. . . . The test
is whether the defendant was actively instrumental in causing
the prosecution.’ [Citation.] Cases dealing with actions for
malicious prosecution against private persons require that the
defendant has at least sought out the police or prosecutorial
authorities and falsely reported facts to them indicating that
plaintiff has committed a crime. [Citations.]” (Sullivan v.
County of Los Angeles (1974) 12 Cal.3d 710, 720, fourth italics
added (Sullivan).)
“[I]n order to establish a cause of action for malicious
prosecution of either a criminal or civil proceeding, a plaintiff
must demonstrate ‘that the prior action (1) was commenced by or
at the direction of the defendant and was pursued to a legal
termination in his, plaintiff’s, favor [citations]; (2) was brought
without probable cause [citations]; and (3) was initiated with
malice [citations].’ ” (Sheldon Appel Co. v. Albert & Oliker (1989)
47 Cal.3d 863, 871.) The parties do not dispute that the criminal
prosecution was terminated in Orcutt’s favor.
Initiation of prosecution
Providing statements to investigators does not constitute
malicious prosecution where the witness does not “instigate” and
is not “ ‘actively instrumental in causing’ ” the prosecution.
(Cedars-Sinai Medical Center v. Superior Court (1988) 206
Cal.App.3d 414, 417 (Cedars-Sinai).) In Cedars-Sinai, the
defendants “were approached by the authorities as potential
witnesses in an investigation which had already focused on” the
suspect. They identified the suspect’s voice in a recorded bomb
threat and testified at the preliminary hearing. (Id. at pp. 418,
7
416.) The court held that the defendants were entitled to
summary judgment in the civil action for malicious prosecution
because they did not “initiate[] the prosecution.” (Id. at p. 417.)
Cedars-Sinai was followed in Zucchet v. Galardi (2014) 229
Cal.App.4th 1466 (Zucchet). Zucchet sued Galardi for allegedly
making false statements to prosecutors about providing money to
bribe Zucchet, and for giving allegedly false testimony about the
bribe during the criminal trial. (Id. at p. 1475.) The court ruled
that the anti-SLAPP motion should have been granted because
“merely giving testimony and responding to law enforcement
inquiries in an active criminal proceeding does not constitute
malicious prosecution.” (Id. at p. 1482.) “[T]o create liability for
malicious prosecution it is not enough to provide information to
authorities during an ongoing criminal investigation. The person
must ‘take some affirmative action to encourage the prosecution
by way of advice or pressure, as opposed to merely providing
information.’ ” (Id. at p. 1485.)
Following the lead of our Supreme Court in Zamos v.
Stroud (2004) 32 Cal.4th 958, 966-967, Zucchet relied on the
Restatement of Torts to define the elements of malicious
prosecution. (Zucchet, supra, 229 Cal.App.4th at pp. 1483-1485.)
Malicious prosecution includes participating in an investigation
or testifying in court “ ‘after learning that there is no probable
cause for believing the accused guilty. It is not enough that he
appears as a witness against the accused either under subpoena
or voluntarily, and thereby aids in the prosecution of the charges
which he knows to be groundless. His share in continuing the
prosecution must be active, as by insisting upon or urging further
prosecution.’ ” (Id. at p. 1483, quoting Rest.2d Torts, § 655, com.
c, p. 414, italics added.)
There is no evidence here that MacDonald “sought out the
8
police or prosecutorial authorities” (Sullivan, supra, 12 Cal.3d at
p. 720) or “instigate[d]” the prosecution (Cedars-Sinai, supra, 206
Cal.App.3d at p. 417). Stradley declared the opposite: MacDonald
never advocated for Orcutt’s arrest or prosecution. MacDonald
was not one of the persons who complained to police. He
answered questions for police only after the investigation had
progressed, and after Orcutt was identified as the lone suspect.
MacDonald asked police to seek other witnesses to establish
authorship of the cards, and refused to further participate in the
investigation. His telephone call to police the day after he was
interviewed repeated the information he previously provided in
response to the police investigation. MacDonald testified at the
preliminary hearing reluctantly under compulsion of a subpoena.
Orcutt did not establish a prima facie case that MacDonald
initiated the prosecution.
Nor is there evidence that MacDonald “falsely reported
facts” to police. (Sullivan, supra, 12 Cal.3d at p. 720, italics
added.) Instead, MacDonald provided an opinion based on his
observations. This case is similar to Cedars-Sinai, where
witnesses’ identification of the voice in a telephoned bomb threat
was a basis to arrest and prosecute the person they identified.
(Cedars-Sinai, supra, 206 Cal.App.3d at p. 416.) Although the
criminal charges there were later dismissed, the witnesses were
entitled to summary judgment for malicious prosecution. (Id. at
p. 417.)
MacDonald told police he had seen Orcutt’s handwriting
some 30 times; the passage of several years and the fact they did
not always work the same shifts at the same station did not show
that MacDonald knew his statements were false. MacDonald did
not claim to be a handwriting expert, and he was not required to
be. Even at trial, “[a] witness who is not otherwise qualified to
9
testify as an expert may state his opinion whether a writing is in
the handwriting of a supposed writer if the court finds that he
has personal knowledge of the handwriting of the supposed
writer.” (Evid. Code, § 1416.)
The cases cited by Orcutt are inapposite. In Rupp v.
Summerfield (1958) 161 Cal.App.2d 657, Summerfield reported to
police that his watch had been stolen, which resulted in Rupp’s
arrest and prosecution. But the jury found the report to police
was false because Summerfield had given Rupp the watch. Rupp
affirmed the judgment for malicious prosecution because “the
defendant was not merely a witness at the preliminary hearing
but initiated the proceeding by knowingly making a false report
to law enforcement officers and that he intentionally and
knowingly testified falsely at the preliminary hearing.” (Rupp, at
p. 663.) But MacDonald was interviewed by police in an
investigation initiated by complaints from others and Pelletier’s
recollection of receiving similar communications from Orcutt.
There is no evidence MacDonald knowingly made false
statements.
In Williams v. Hartford Ins. Co. (1983) 147 Cal.App.3d 893,
the complaint alleged malicious prosecution based on a
conspiracy to make false statements to police and the court. (Id.
at pp. 895, 897.) The court held the demurrer should have been
overruled because a demurrer challenges only the legal
sufficiency of the complaint and not the plaintiff’s ability to prove
the allegations. (Picton v. Anderson Union High School Dist.
(1996) 50 Cal.App.4th 726, 732.) In contrast, an anti-SLAPP
motion requires the plaintiff produce admissible evidence to
support the allegations in the complaint. (Lee v. Kim, supra, 41
Cal.App.5th at p. 721.) Orcutt failed to do so. Williams
recognized that “in most cases, a person who merely alerts law
10
enforcement to a possible crime and a possible criminal is not
liable if, law enforcement, on its own, after an independent
investigation, decides to prosecute.” (Williams, at p. 898.) That
is what happened here.
Probable cause
The probable cause element requires determination of
“ ‘whether, on the basis of the facts known to the defendant,’ ” “it
was objectively reasonable for the defendant . . . to suspect the
plaintiff . . . had committed a crime.” (Ecker v. Raging Waters
Group, Inc. (2001) 87 Cal.App.4th 1320, 1330.) “That question
can be answered only on the basis of what the accuser knew or
should have known when initiating proceedings. . . . Evidence
that appears later, and could not reasonably have been known to
the accuser, does not discredit an action taken earlier.” (Rest.3d
Torts, Liability for Economic Harm, § 22, com. b, p. 188.) Here,
there is no evidence that MacDonald knew about the FBI
handwriting analysis or other subsequent investigation before he
talked to police or testified.
We view the element of lack of probable cause in light of
MacDonald’s limited role as a witness in an ongoing
investigation. “Public policy requires that ‘private persons who
aid in the enforcement of the law should be given an effective
protection against the prejudice which is likely to arise from the
termination of the prosecution in favor of the accused.’ ” (Cedars-
Sinai, supra, 206 Cal.App.3d at p. 418.) This policy would be
inconsistent with a requirement that witnesses who merely
provide information regarding some aspect of an investigation
must first satisfy themselves that there is probable cause the
defendant committed a crime. (3 Dobbs et al., The Law of Torts
(2d ed. 2011) § 588, p. 394 [suggesting citizen “need only state the
facts accurately” and need not believe the accused committed the
11
offense].)
Orcutt contends that lack of probable cause is established
by several “inconsistencies” in MacDonald’s statements. But the
failure of MacDonald’s declaration to mention the June 29 or
New York phone calls are not inconsistencies. The declaration
was only one and a half pages long and did not claim to cover
every aspect of the criminal investigation. His declaration
conflicted with his preliminary examination testimony as to
whether Stradley was among the officers who showed him the
cards, but that detail is not significant and is not a conflict in
“ ‘evidence bearing on the question of probable cause.’ ” (Greene
v. Bank of America (2013) 216 Cal.App.4th 454, 465.) Orcutt has
not established that MacDonald acted without probable cause.
Malice
Finally, there is no evidence of malice or an improper
purpose. A mere conflict between MacDonald’s opinion and other
evidence does not show malice. (Cedars-Sinai, supra, 206
Cal.App.3d at p. 417, fn. 2.) “Merely because the prior action
lacked legal tenability, as measured objectively . . . , without
more, would not logically or reasonably permit the inference that
such lack of probable cause was accompanied by the actor’s
subjective malicious state of mind. In other words, the presence
of malice must be established by other, additional evidence.”
(Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 498-
499, fn. omitted.) There was no evidence that MacDonald
believed probable cause was lacking when he provided his
statements and testimony. His statement that he was “not fond
of” Orcutt, based on a previous incident in a fire station, or the
purported inconsistencies in his statements discussed above, are
not evidence that he reported his opinion to police or at the
preliminary hearing for an improper reason.
12
Conclusion
Because Orcutt has not established a probability he would
succeed on his malicious prosecution claim, the court properly
granted the section 425.16 motion. MacDonald as the prevailing
defendant is entitled to costs and attorney’s fees on appeal
pursuant to a noticed motion in the trial court. (§ 425.16, subd.
(c)(1); Cal. Rules of Court, rules 8.278, 3.1702(c); Wanland v. Law
Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th
15, 21.)
DISPOSITION
The judgment is affirmed. Respondent shall recover costs
and attorney’s fees on appeal, in an amount to be determined on
noticed motion in the trial court.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
13
Rita Coyne Federman, Judge
Superior Court County of San Luis Obispo
______________________________
Decker Law and James D. Decker for Plaintiff and
Appellant.
Adamski Moroski Madden Cumberland & Green, Joshua
M. George, Chase W. Martin; Greines, Martin, Stein & Richland,
Timothy T. Coates and Jeffrey E. Raskin for Defendant and
Respondent.